What’s at stake in TSCA reform

When negotiations over legislation to reform the 39-year-old Toxics Substance Control Act (TSCA) broke down this past fall, among the major points that remained unresolved were how a revised TSCA would treat state and other local chemicals management regulations and how – and under what timelines – the US Environmental Protection Agency (EPA) would prioritize chemicals for safety review. As of early this year, lawmakers on both sides of the aisle in the House and Senate have issued statements about their commitment to produce a bipartisan bill. Chemical industry trade associations and environmental health advocates have similarly expressed “cautious optimism” that legislation will be produced that Democrats, Republicans and other stakeholders can support.

As we wait for introduction of a new TSCA reform bill, on which Senators Tom Udall (D-NM) and David Vitter (R-LA) are expected to take the lead, The Pump Handle has decided to take a look at some of what’s at stake and revisit why the outcome matters to those who care about protecting and improving occupational and public health.

State vs. federal law

There has been some debate about how the language in the last draft of the Chemical Safety Improvement Act and its companion House bill, the Chemicals in Commerce Act, would actually play out with regard to state and local laws. But it was largely interpreted – including by numerous state legislators and attorneys general – to mean that the new legislation would change TSCA in a way that would effectively stop states from regulating chemicals independently of EPA and do so both retrospectively and prospectively. What the draft bills essentially said was that states could not regulate chemicals about which the EPA has made any type of determination – even if the federal agency decided not to regulate a chemical.

Putting arguments about the competing authority of federal and state law aside, here’s a reminder of why passions are running so high on this issue.

According to Safer States’ “bill tracker,” there are now at least 169 state chemical regulation bills that have been passed in at least 35 states. These include numerous laws that address chemicals and chemical uses that are not regulated under TSCA. Among these:

Other laws that could be affected by a TSCA state-preemption provision include Maine and Washington’s laws regarding “chemicals of concern” in children’s products. These require manufacturers to report on such chemical use and under certain circumstances include chemical phase-outs and substitution with safer alternatives. Other states – among them Connecticut, Florida, New York and Oregon – are now considering similar bills.

TSCA preemption could potentially affect California’s Proposition 65 – the state law that designates chemicals as carcinogens, reproductive and developmental toxicants and posts warnings on products and facilities where these substances are used. Such a provision could also affect California’s Safer Consumer Products Regulations – part of the state’s so-called “green chemistry” policy – that aims to replace hazardous chemicals with safer alternatives. The state is in the process of designating the regulations’ first chemical-product combinations that would be targeted for possible phase-out unless safer alternatives can be found.

Currently, TSCA makes it very difficult for EPA to restrict – let alone ban – the use of any chemical. For example, the same diisocyanates – known as significant factors in occupational asthma – that would be covered by the California “priority product” designation are subject to an EPA TSCA “chemical action plan” which is taking years to develop. EPA started the process in 2011 when it released its methylene diphenyl diisocyanate work-plan. The original public comment period on it lasted a year. It was then extended until April 2014. Then in March 2014, the comment period was extended again and now closes on April 1, 2017. In contrast, California’s first “priority product” list is to be finalized this year.

Another example involves nonylphenols and nonylphenol ethoxylates. These chemicals have adverse consequences for the environment and human health, including those occurring through occupational exposure. Nonylphenols and nonylphenol ethoxylates are toxic to aquatic organisms, have been found in human biomonitoring studies and appear to have estrogenic and endocrine system effects. These compounds are used in commercial and other cleaning products, to “cure” epoxies, and as surfactants in numerous other industrial and commercial products, including dust-control and deicing products.

Maine has designated nonylphenols and nonylphenol ethoxylates as “priority chemicals” under its Safer Chemicals in Children’s Products law. While this does not restrict their use, it requires manufacturers to report to the state the names of products that contain these compounds. EPA’s action on nonylphenols and nonylphenol ethoxylates has languished. The agency released its “action plan” for the compounds in August 2010. This past September, EPA proposed a Significant New Use Rule for these compounds – a TSCA provision that would require manufacturers to notify EPA of any new uses – the comment period for which closed on January 15. Chemical manufacturers and companies that use these chemicals in their products are objecting to this proposal in part because they say EPA is attempting to address ongoing rather than new uses of these compounds. Whatever EPA’s response to these comments, it’s likely – if EPA’s past performance is any indication – that any action on these compounds will be further delayed.

EPA’s past performance with the TSCA “action plan” timelines also illustrate another objection that’s been raised to the draft TSCA reform bills most recently considered: the lack of effective deadlines under which EPA would be required to act on chemicals of concern, including chemicals with well-recognized health risks. Other issues that remain unresolved include consideration of vulnerable populations and handling of confidential business information.

Word among those following TSCA reform closely and those involved in these discussion on Capitol Hill, is that new legislation is expected this spring. In the meantime, at least 24 states have 71 new chemicals management bills under consideration.